Google tries to block 'clandestine' tracking case

Google is asking the High Court to block a breach of privacy legal action launched against it by a group of British Internet users.

The Internet giant’s lawyers are seeking a declaration that the court has no jurisdiction to try their claims, which relate to the Apple Safari Internet browser.

The group, known as Safari Users Against Google's Secret Tracking, accuse Google of bypassing security settings in order to track their online browsing and to target them with personalised advertisements.

The group includes editor and publisher Judith Vidal-Hall, with Robert Hann and Marc Bradshaw, who are both IT security company directors.

They say Google's "clandestine" tracking and collation of Internet usage between summer 2011 and spring 2012 has led to distress and embarrassment among UK users.

They argue Google's bid to block a trial is "misconceived" and the company should "answer to British justice."

Allegations against Google include misuse of private information, breach of confidence and of the 1998 Data Protection Act.

In particular, it is alleged Google acted directly contrary to a 2009 amendment to a EU Directive which required informed consent before a cookie could be placed on an Internet user's device for tracking and collating purposes related to behavioural advertising.

The users action group says the information was collected and sold to advertisers who used its DoubleClick advertising service.

Google wants London's High Court to rule that the English courts are not the proper place to bring a claim, and dissatisfied Safari users should have launched their claims in the USA, where Google is based.

Antony White QC, appearing for Google, today argued the British claimants had failed to establish that their claims fell within one or more of the legal "gateways" which would allow them to go ahead.

White told Justice Tugendhat that the only potential gateway available required there to be a real basis for concluding that the conduct complained of between summer 2011 to spring 2012 would be "continued or repeated".

He said: "There is no suggestion there is any risk of repetition or continuation of that conduct and good reason to think that it will not be repeated or continued".

In written arguments before the judge, Google, which is registered in Delaware and has its principal business base in California, contends any damages recovered if the claimants win are likely to be "very modest".

A trial would be likely to last six to seven days and cost in the region of £1.2m and be disproportionately expensive.

A trial was likely to be "substantial and complex" and involve a great deal of highly technical evidence about the operation of browsers, websites and cookies.

Vidal-Hall said before the court hearing, expected to last two days: "Google is very much here in the UK. It has a UK specific site. It has staff here. It sells adverts here. It makes money here. It is ludicrous for it to claim that, despite all of this very commercial activity, it won't answer to our courts.

"If consumers are based in the UK and English laws are abused, the perpetrator must be held to account here, not in a jurisdiction that might suit them better.

"Google's preference that British consumers should travel all the way to California to seek redress for its wrongdoings is arrogant, immoral and a disgrace. We will fight this attempt to dismiss the case robustly."

Hugh Tomlinson QC, appearing for Safari users, said he rejected Google's criticism that the claims being brought were uninteresting and made for "trivial" amounts.

Tomlinson told the judge: "These claimants are holding Google to account for what they have done."

He said no regulatory authority had taken action against Google in the UK, though there had been action in the US. One of two US investigations related to the very breaches underlying the basis for the UK court action.

The Safari users wanted "to find out what information has been obtained (by Google) and how it has been used", said Tomlinson.

"We say there are very serious and important issues which relate to how Google, a corporation of immense wealth and power, deals with private information and the individuals who use their services.

"We wholly reject the idea these are trivial and uninteresting claims sounding in trivial sums and the court should not entertain them."